tag:blogger.com,1999:blog-20803105.post420827119549196294..comments2024-02-14T06:39:11.423-05:00Comments on EXCESS COPYRIGHT: Canada’s Unlocatable Copyright Owner Regime – A Canadian “Solution” or a Canadian Problem or a Canadian Opportunity?Howard Knopfhttp://www.blogger.com/profile/18321190334597129416noreply@blogger.comBlogger6125tag:blogger.com,1999:blog-20803105.post-60643287614601367882014-05-07T22:01:53.205-04:002014-05-07T22:01:53.205-04:00Andrew, a few comments:
1) On “reasonable effort”:...Andrew, a few comments:<br />1) On “reasonable effort”: I believe that the very essence of the concept of “reasonableness” is that it is measured with relation to the specific context. So what kind of effort to locate the owner is reasonable is a case specific issue, which may vary with the type of work, and the type of use being contemplated. It’s totally plausible that in the case that you mention, the likelihood of locating the owner is so small, that even no effort will be a reasonable effort.<br />2) If “in all likelihood [the owners] would have no objection to the proposed use of the material” then why any additional license is necessary, instead of saying that this is a case of implied license, or that the principle of de minimis no curat lex should bar any claim of infringement?<br />3) The decision that you linked to is thin in details, but the few details that do exist there suggest to me that arguing successfully that the project is fair dealing could have been more than plausible.<br />4) Maybe you provided the answer already: this was a project funded by Heritage, which insisted on clearing all copyright. In other words, we have public officials that have very good reasons to be extremely risk averse, and are very happy to pay whatever and to whomever to eliminate any risk of controversy. I can see why from their perspective transferring $5000 from the public purse to the private pocket of copyright collectives (which by definition doesn’t and couldn’t represent the unlocatable owners—if it did, the owners wouldn't be unlocatable) might look like a very good idea. And I can also see why such users may not really care that s. 77 doesn't contemplate extended collective licensing or paying to anyone else other than the owner, and that it doesn’t even contemplate paying anything upfront; only if and when the owner emerges. From the perspective of such users paying to whomever the Board says makes perfect sense if they don’t have to worry about copyright anymore. But this doesn’t necessarily makes this a good policy. <br />Ariel Katzhttp://www.arielkatz.orgnoreply@blogger.comtag:blogger.com,1999:blog-20803105.post-88606779551669392302014-05-06T09:12:43.112-04:002014-05-06T09:12:43.112-04:00www.cb-cda.gc.ca/unlocatable-introuvables/licences...www.cb-cda.gc.ca/unlocatable-introuvables/licences/246-e.pdf<br /><br />But I think we need to be clear that it wasn't a matter of getting "around" the "reasonable" requirement. The challenge was trying to find people who likely changed their names, moved, had written for papers that no longer existed and who in all likelihood would have no objection to the proposed use of the material. <br /><br />Your issues with collectives and with the Copyright Board process doesn't make the scheme bad. There may be alternatives, but there are also situations where the unlocatable copyright owner regime is a good solution.Andrew Martinnoreply@blogger.comtag:blogger.com,1999:blog-20803105.post-33091425799805379032014-05-05T17:26:37.580-04:002014-05-05T17:26:37.580-04:00Andrew, the Act says
"...the Board is satisf...Andrew, the Act says<br /><br />"...the Board is satisfied<br />that the applicant has made REASONABLE efforts<br />to locate the owner of the copyright and<br />that the owner cannot be located, the Board<br />may issue to the applicant a licence.."<br />(emphasis added)<br /><br />So how did you or the Board get around the word “reasonable” when you say “given the nature of the project and the content involved, it would have been difficult and very time-consuming to make even reasonable efforts.” Isn’t that either a misuse of the provision or a mis-application of it by the Board or both? What am I missing?<br /><br />Maybe a link to the ruling would be helpful here?<br /><br />Howard<br />Howard Knopfhttps://www.blogger.com/profile/18321190334597129416noreply@blogger.comtag:blogger.com,1999:blog-20803105.post-50184528950610611652014-05-05T17:11:36.461-04:002014-05-05T17:11:36.461-04:00Actually, no. It was Heritage funding, and the req...Actually, no. It was Heritage funding, and the requirements were quite strict. Added to which, given the nature of the project and the content involved, it would have been difficult and very time-consuming to make even reasonable efforts. Andrew Martinnoreply@blogger.comtag:blogger.com,1999:blog-20803105.post-35309357010619239812014-05-05T14:10:23.226-04:002014-05-05T14:10:23.226-04:00Hi, Andrew - I'm happy to post your single ane...Hi, Andrew - I'm happy to post your single anecdotal example. However, isn't it rather circular? Your funder would probably ask whatever the most bureaucratic/maximum assurance that is available. Why shouldn't a simple declaration that a satisfactory check list/protocol as potentially endorsed by the Board been followed suffice?<br /><br />See Prof. Katz's paper at p. 1324:<br /><br />"Arguably, it would be open to the Board to adopt a very<br />minimal threshold. For example, it could be enough for an applicant to fill an<br />online form and click “I Agree” below a declaration that she made<br />reasonable efforts to locate the owner and could not locate him, and if that<br />seems too easy, a sworn declaration of the same could suffice to satisfy the<br />Board."<br /><br />Regards,<br />H.Howard Knopfhttps://www.blogger.com/profile/18321190334597129416noreply@blogger.comtag:blogger.com,1999:blog-20803105.post-12009861184842754112014-05-05T13:29:56.760-04:002014-05-05T13:29:56.760-04:00I think this would be more balanced if it included...I think this would be more balanced if it included input from users of the scheme. I assisted an applicant, after we determined that it was faster, simpler and probably cheaper than any alternative. Doing and paying nothing would have been nice, but copyright clearance was a condition of the project funding. Andrew Martinnoreply@blogger.com